Decriminalisation judgment boosts morale of gay community, says study

Ensuring greater self-confidence, verdict has already brought the community one step closer to living with dignity

Even as the Supreme Court has begun hearings on the legality of the decriminalisation of consensual gay sex, a report by the Centre for Health, Law, Ethics and Technology (CHLET) at the Jindal Global Law School has found that the 2009 Delhi High Court judgment has significantly enhanced the social acceptance and self-esteem of Lesbians, Bisexuals, Transgenders and Queers (LGBTQ).

The High Court's landmark decision of revoking the archaic Section 377 of the Indian Penal Code has led to a gradual but steady acceptance of sexual minorities by society, concludes the study. This shows that attitudes can be moulded and mindsets transformed by even subtle but progressive changes in the law. Ensuring greater self-confidence for the community, it has already brought them one step closer to living with dignity, states the report.

‘Unnatural sex'

The apex court, on Wednesday, began the hearings on a bunch of petitions challenging the High Court judgment in the case between the Naz Foundation and the Union of India. Justices G.S. Singhvi and S.J. Mukhopadhayaasked a petitioner, “So, who is the expert to say what is ‘unnatural sex'? The meaning of the word has never been constant. We have travelled a distance of 60 years. Now it is test-tube babies, surrogate mothers. They are called discoveries. Is it in the order of nature? Is there carnal intercourse?”

“There is a difference. There is a lot of change. Now we feel braver and can speak up for our rights, even against police. We are not scared of police like before,” said a respondent.

Some respondents said they could now argue with the police since they knew Section 377 was not there in the law books any more.

Though most respondents felt more emotionally secure and positive, there are mixed responses as far as police harassment is concerned. While some felt harassment had substantially reduced among MSM (men who have sex with men) outreach workers, they pointed out that it had only to some extent reduced amongst Hijras and Kothis.

A programme coordinator with an NGO was not optimistic about any change following the judgment. He said, “After the judgment, police harassment has not reduced much. Four-five months ago, my friend and I were in his car. We were not doing anything. The police came and started knocking on the door of the car because the car had been parked on the side. They accused us of having sex.” However, on a more optimistic note another respondent stated, “Police do not trouble me as much after the judgment as they did earlier. The media supports us.” All in all, it was found that though police harassment had reduced significantly in certain areas of Delhi, in other areas it continues unabated.

Wide media coverage of the Naz Foundation judgment and the queer pride march and movies like Dostana have also helped in changing societal perception of homosexuals, according to some respondents. People are treating them with respect and there has been a change in thinking also, said one.

As far as familial acceptance is concerned, the judgment seems to have made little or no impact. Most respondents from the community said they would still not disclose their identities to their families and some others who had in the past were discriminated against.

“Laws needed”

One of them said, “I cannot even go home as my sister has to get married. I feel that there should be an environment in which we can live more openly. Parents play a huge role in discriminating. Even they tease. Why should I be blamed because I do not get attracted to girls? There has to be anti-discrimination laws to protect us and then families will be more accepting.”

“Studies in the past in countries like Australia and South Africa have observed that jurisdiction with anti-sodomy laws have seen lower self-esteem amongst homosexuals, while jurisdiction with decriminalisation of homosexuality has observed greater self-acceptance and confidence. This was confirmed through the interviews,” said lead author of the study, Professor Dipika Jain, a Harvard law graduate and Assistant Professor at CHLET.

The phrase "unnatural sex" is a nonsense in words because such actions take place within nature and not outside and secondly as natural sceintists are increasingly showing same-sex affection exists in the animal world.